MacDougall v. Caldwell Enterprises, 2010 HRTO 2504

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kyle MacDougall Applicant

-and-

Stephen Caldwell o/a Caldwell Enterprises and Stephen Caldwell Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 16, 2010 Citation: 2010 HRTO 2504 Indexed as: MacDougall v. Caldwell Enterprises

INTRODUCTION

1The applicant filed an Application with the Tribunal on September 28, 2010, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of disability. In his Application, the applicant indicates that the facts of the Application are part of an Occupational Health and Safety Act (“OHSA”) claim before the Ontario Labour Relations Board.

2The respondents filed a joint Response on November 26, 2010. The respondents request that the Tribunal defer consideration of this Application pending the conclusion of the OHSA proceeding. The respondents indicate that the OHSA claim alleges that the applicant was subjected to unfair reprisal in relation to events alleged in the Application. The respondents submit the Application should be deferred because the OHSA proceeding is on-going.

3On November 26, 2010, the Tribunal issued a Notice of Intent to Defer (“Notice”) pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal directed the applicant to file a Reply setting out the applicant’s submissions with respect to the respondents’ request to defer by no later than December 10, 2010.

4No Reply was received from the applicant in response to the Tribunal’s Notice.

DECISION

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them, see Calabria v. DTZ Barnicke, 2008 HRTO 411 and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324.

7The Application alleges that the applicant experienced disability-related discrimination, including failure to accommodate. The Application details the applicant’s concerns of harassment following an inspection by the Ministry of Labour. The applicant alleges that he was laid off because of his report to the Ministry of Labour. The OHSA claim, filed on September 9, 2010, alleges that the respondents terminated the applicant’s employment for attempting to ensure that the respondents complied with the OHSA and reporting a workplace accident to the Ministry of Labour.

8It appears that the OHSA process was commenced first and the claim is on-going. It also appears that the facts and allegations in the Application and the OHSA claim are the same and that legal issues overlap. The OHSA claim and the Application seek similar remedies with respect to reinstatement, lost wages, training and general damages. Given that similar issues are raised in the Application and the OHSA proceeding and arise out of the same factual circumstances, as well as the potential for overlapping remedies, the Tribunal finds in these circumstances that it is appropriate to defer consideration of this Application pending the conclusion of the OHSA proceeding.

9The Tribunal orders the deferral of the Application pending the conclusion of the OHSA process. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

10I am not seized of this matter.